In 2010, the Texas Legislature created the Texas Physician Health Program (PHP), effectively shifting the oversight of licensed Texas physicians with substance abuse disorders and mental illness from the Texas Medical Board to a program uniquely tailored to monitor those issues. Responsible in part for the success of this idea is the sentiment that physicians generally do not like dealing with the Medical Board, and are not keen on self-reporting substance abuse issues to the Medical Board or being candid about mental health problems. The PHP, while not entirely independent from the Medical Board (PHP is administratively linked to the TMB), was intended to provide a more attractive option for those physicians who needed the oversight and the help that PHP would provide. In the 2+ years since its creation, the PHP has largely been successful, and certainly is still preferable to the Medical Board’s investigative and disciplinary process in many instances. However, there are certain types of “substance-related” cases in which a referral to the PHP is not appropriate, and a physician would be better served to hire an experienced professional license defense attorney and take the case to the Medical Board, seeking dismissal. Simply put, a one-time arrest and conviction for DWI or Public Intoxication does not justify a long-term PHP contract aimed at facilitating recovery.

The PHP is not typically appropriate in instances where the physician has had a one-time substance-related arrest, but no substance abuse diagnosis. However, we frequently encounter physicians who have been arrested for one-time instances of DWI or public intoxication and are subsequently offered participation in the PHP in lieu of Medical Board action. Oftentimes, the offer of PHP contract will have been given before the DWI case is even criminally adjudicated. For a physician that does not seek the proper legal guidance, that one-time DWI arrest will result in a 5-year PHP contract, where the physician is subjected to terms that likely include substance abuse treatment, Alcoholics Anonymous attendance, drug screening, and possibly practice restrictions. While a confidential PHP contract that offers that level of structure is probably appropriate for a physician with a diagnosed substance use disorder, it is not appropriate for the physician who made a highly regrettable, one-time decision to drink and drive. Additionally, it is very difficult for anyone to stay compliant with a 5-year PHP contract when there is no actual substance abuse disorder- the terms of the order start to look very arbitrary. Moreover, there will be lifelong consequences with credentialing and applications for privileges.

The alternative to a PHP contract is the perceived threat that the physician’s case will be forwarded to the Medical Board for investigation and possible disciplinary action. Contrary to common misperceptions, that is often the preferable scenario in this instance. The Medical Board does not have the power to discipline a physician for a one-time arrest and conviction of DWI, and as long as that DWI does not lead to evidence that the physician may have a substance abuse problem, the Medical Board must dismiss the case (Tex. Occ. Code § 164.051(a)(2)). The physician will probably be investigated and invited to participate in an Informal Settlement Conference with the TMB, but an experienced administrative law attorney should be able to guide them through the process without receipt of any discipline. The professional license defense attorneys of the Leichter Law Firm have been very successful in getting these cases dismissed.

If you are a physician, physician assistant, or other licensee of the Texas Medical Board, and you have been offered a PHP participation contract in response to a one-time substance-related arrest, do not hesitate to contact the experienced administrative law attorneys of the Leichter Law Firm. Even if you have not yet been contacted by the TMB or the PHP regarding your substance-related arrest, it is advisable to contact us at 512-495-9995 for a free consultation.

I often receive calls from nursing students, or even those only considering pursuing a nursing degree, with questions concerning whether or not they will be licensed by the Board of Nursing. Typically, these individuals have a criminal record, history of misuse of controlled substances, or a mental health diagnosis that they fear will present an obstacle to successful licensure.

These persons have already taken best course of action by being proactive and contacting an attorney with experience before the Board and who should therefore be able to estimate the difficulty they may or may not face in applying for their license. Generally speaking most nurses with marks on their record should be able to obtain licensure. A good portion of these may have to do so under the form of a probationary license with restrictions related to whatever it is that concerns the Board.

For example, an applicant with a history of abuse of controlled substances may only receive their license on the condition that submit to random drug screens, attend AA meetings, successfully complete a recovery program, and work in an environment where they can be supervised by a superior nurse. A nurse with a criminal record may have to enter into an Agreed Order that provides for supervised practice and grants them only a provisional license with full licensure dependent on achieving a number of years of violation-free practice. Finally, persons with a serious psychiatric diagnosis may need to agree to an Order mandating that they continue with a specified medical treatment program to keep their condition under control.

The very few nurses who will likely not be issued a license are those with serious criminal convictions or an ongoing and untreated chemical dependency problem. On the issue of serious criminal offenses I am referring to convictions such as rape, sexual assault, kidnapping, injuring a child, or murder. Section 301.4535 of the Nursing Practice Act provides a list of criminal offenses for which the Board may refuse to license an applicant. Other felony convictions fall under this list as well.

Future nurses should note, however, that the Board is typically reluctant to license a nurse even a minor black mark on their record if they are not represented by an attorney. They will usually refuse outright or press a nurse to enter into an order with terms that are more stringent than indicated by their history. As in any disciplinary matter, the Board of nursing generally pursues the severest sanction unless the nurse has a lawyer to fight for their interests.

One option for students unsure of their eligibility for licensure is found in § 301.257 of the Nursing Practice Act. This section provides that a nursing student or even a person only considering attending a nursing school can file a Petition for a Declaratory Order of Eligibility for Licensure. In response, the Board of Nursing will then review that person’s history and assess whether they meet the required good moral and professional character standards. If they do, the Board Staff will issue a Declaratory Order finding that individual conditionally eligible for licensure as long as they graduate and later pass the standard nursing exams.

If you have questions about your eligibility for a Texas nursing license or the declaratory order procedure, please call an experienced administrative law attorney. They should be able to intelligently discuss your case and lay out your options. Don’t wait until after graduating from nursing school to find out that you may not be eligible for a Texas license.

A recurring scenario in my office goes like this: A physician contacts me about a letter they have received from the Office of the Inspector General stating that they are investigating whether or not the doctor has been involved in conduct that warrants exclusion from the Medicare and Medicaid programs. Oftentimes this concerns the physician’s plea of guilty or nolo contendre to a crime involving these or other government programs or that has some other connection to health care. This is very frustrating to both me and the physician as under federal law even if they do not directly involve a federal program, if any of these crimes is a felony, the client has a serious chance of being summarily excluded.

Under the Social Security Act, the Office of the Inspector General must exclude a physician from Medicare and Medicaid participation for:

Conviction for any criminal offense related to a federal or state health care program;

Conviction for a crime relating to patient abuse;

Conviction for a felony connected to health care and involving fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct; and

Conviction for a felony involving a controlled substance.

42 U.S.C. § 1320(a)(7).

The last two exclusion rules are the result of Congressional lobbying efforts by the OIG aimed at cutting down federal payments to “bad” physicians thereby saving program costs. The end product has been a set of broadly drafted laws that permit the OIG to exclude a physician who has been convicted for any of a wide array of crimes that can somehow be related back to health care. It should also press properly informed physicians into more carefully weighing their options when considering a plea.

Keep in mind that under the applicable federal law even a plea of nolo contendre will amount to a felony conviction. The same applies to pleas involving probation, community supervision, or deferred adjudication. Perhaps most important to remember is that an exclusion under any of the four grounds outlined above is both mandatory and for a minimum of five years. The impact on a physician’s practice and employment prospects caused by a five year exclusion is generally devastating if not fatal. Also note that under federal law, if a physician is excluded from one federal program, they are automatically excluded from all federal programs.

Unfortunately, most criminal defense attorneys are not aware of these serious consequences while they hammer out a plea for their physician clients. The fact is a physician should try and plea to a misdemeanor whenever possible, as an exclusion for most misdemeanors is neither mandatory nor for five years. Once a physician has been convicted of a felony related to health care, their only avenue for avoiding the mandatory exclusion is through obtaining a sole community provider waiver. See Title 42 CFR § 402.38. This is done by filing an appeal with the appropriate state agency and arguing that the physician who is to be excluded is the role provider of certain medical services to Medicare/Medicaid patients within a defined geographic area. If they state agency agrees, they will then request a waiver of exclusion from the OIG. This is a narrow exception; if like most doctors, the physician practices in a urban area, he or she will likely be ineligible unless their practice is extremely specialized.

The bottom-line is that any physician facing criminal charges would be prudent with contacting an attorney knowledgeable in the applicable federal law and experienced before the Office of the Inspector General. In this way, the physician can be completely informed of the potential consequences of any particular plea. Failure to do so, can result in a plea that effectively foreclose their ability to avoid federal exclusion.

It is also worth keeping in mind that a criminal conviction will almost certainly cause an inquiry and possible sanction by state licensing boards, professional/credentialing societies, provider networks, and institutions where the physician holds credentials. Thus Medicare/Medicaid exclusion mirrors the general characterization of medical and professional licensing law as a veritable house of cards where the removal of one can cause the rest to quickly follow suit. This is an area where the retention of an experienced attorney can make all the difference.

The Leichter Law Firm represents physicians and other health care professionals and organizations in administrative / professional licensing matters, quality assurance and peer review proceedings and regulatory cases before and against both state and federal agencies. The firm also handles...More...